Sunday, May 30, 2010

Section 29 — the respondent/defendant has taken a stand that he has commenced his business with the label 'NAYA JET BRAND' on 01.2.1997 having entirely different from the quality of plaintiff such as 'NAYA JET BRAND' with different colours and figures of the figure brand represented in English, Tamil and Hindi in dark blue, orange, red and yellow colour with attachment of each figures of 'NAYA JET BRAND' colour combination and also a plea to the effect that there are lot of differences of the figures of'JET BRAND' of the plaintiff and 'NAYA JET BRAND' of the defendant in all aspects a cursory look of the appellant/plaintiffs label Ex.A. 1 and the Ex.A. 3 label of the respondent/defendant, this Court is of the considered view that the respondent/defendant has adopted the appellant/plaintiffs label Ex.A. 1 with small/minute changes in regard to the visual of flying of aeroplane and adding a word 'NAYA' before the word 'JET BRAND' in English and further there is phonetic similarity of'JET BRAND' except the word 'NAYA' and these will not alter the situation in any way in favour of respondent/defendant including the one the respondent/defendant even selling the lungies in the name of 'QUEEN JET BRAND' from 16.7.1999 with a device of aeroplane flying will not enure to his benefit and accordingly, this Court holds that the respondent/defendant with a dishonest intention has adopted the trading style label similar to that of appellant/plaintiff and has practised deception and has committed an act of passing off infringement of trade mark of the appellant/plaintiff and resultantly, the appellant/plaintiff is entitled to the relief of permanent injunction restraining the respondent/ defendant, his men, agents etc. claiming under him from using or attempting to use or enabling others to use the word NAYA JET the devise of the aeroplane or in combination thereof and (or in any other Trade Mark identical or deceptively similar or in any other manner infringing the plaintiffs Trade mark registered in Regn. No. 467004 in clause 24 in respect of Textile cloth including lungies and further that the respondent/defendant is directed to produce before the trial Court all his accounts of sales and profits from the year 1996-1997 for determining the damages/compensation payable by him to the appellant/plaintiff and in this regard, the appellant/plaintiff is directed to file necessary application by means of separate proceeding and the trial Court shall determine the same in the manner known to law and the points 1 to 4 are answered accordingly thereby perforcing this Court to interfere with the findings rendered by the trial Court and consequently allows the appeal to promote substantial cause of justice. [Para 25 & 33]